[co-author: Lea Kaase]

Can the Federal Republic of Germany invoke a copyright on military status reports? This is the key question currently before the European Court of Justice (CJEU) (Case Ref. C-469/17). But before the Court submits a ruling on the case, presumably in early spring 2019, Advocate General Maciej Szpunar published his Opinion on 25 October 2018. And his opinion is clear: The preliminary proceeding coming from Germany is already inadmissible and the German Federal Supreme Court (BGH) should refer the case back in order to clarify how and if copyright protection can be claimed. The Advocate General has significant doubts about this and asserts that a Member State could not justify applying copyright law on the ground of protecting freedom of expression and information in this particular situation.

Background

The so-called Afghanistan papers are at the center of the legal dispute. These include the weekly status reports prepared by soldiers on the deployment of the Bundeswehr (German Federal Armed Forces), especially in Afghanistan. Under the designation “Unterrichtung des Parlaments” (UdP; in English “information to the parliament”) they are forwarded to selected members of the parliament and are classified as the lowest of the four secret levels.

In 2012, the Funke Medien NRW GmbH, a media company which also operates the online presence of the newspaper Westdeutsche Allgemeine Zeitung (WAZ), applied unsuccessfully for access to the status reports since 2001. The reason for the rejection was security related. The WAZ nevertheless received the status reports via unknown channels and published them under the title Afghanistan Papers. The Federal Republic of Germany turned against the publication as the employer of the soldiers and sued Funke Medien NRW GmbH for injunctive relief due to an alleged copyright infringement on the status reports.

Both the Regional Court (Case Ref. 14 O 333/13) and the Higher Regional Court of Cologne (Case Ref. 6 U 5/15) concurred with the plaintiff’s view. Only the BGH had doubts and referred three questions to the CJEU to clarify the interplay of copyright law as well as freedom of information and freedom of the press within the framework of copyright limitations.

Opinion

Advocate General Szpunar considers the preliminary proceeding as inadmissible. The BGH intends to clarify questions that have so far been purely hypothetical and based on the premise that the status reports are protected by copyright in the first place. According to the BGH, this circumstance had not yet been sufficiently answered by the lower courts. Although the Advocate General appreciates the procedural economic considerations, a referral back to the Higher Regional Court of Cologne is necessary for the factual assessment. In addition, Szpunar expressed considerable doubts as to the validity under copyright protection of the Afghanistan papers, which are merely “purely informative documents that are inevitably drafted in simple and neutral terms” and any originality is excluded. The Advocate General also remarks that the structure of the documents does not appear to be sufficiently creative to reach the level of creation.

In the event that the CJEU, contrary to the opinion of the Advocate General, picks up the preliminary procedure, Szpunar proposes to interpret EU copyright law to the effect that a Member State is precluded from invoking copyright law in order to prevent the publication – in the context of a debate concerning public interest matters – of confidential documents emanating from that Member State. It is noteworthy that the detailed preliminary remarks clearly overlay the actual answers to the questions referred.

Szpunar recommends reformulating the questions referred, dealing with them jointly and focuses on the question of whether the right to freedom of expression guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union may be restricted by copyright law in the specific case. He rightly points out that there is often a conflict between the rights in question and that some legal provisions already deal with the conflict (e.g. various copyright exceptions). Nevertheless, the case involves special facts. On the one hand, a Member State (and not an individual) invokes copyright law, which is not a beneficiary of fundamental rights, but a party under fundamental rights obligations. On the other hand, Germany uses copyright for the pursuit of goals which are completely foreign to copyright law, namely for the preservation of the confidentiality of documents.

Outlook

The Opinion of the Advocate General is worth reading and it will be exciting to follow whether the CJEU agrees with Szpunar’s view on the inadmissibility and thus, does not comment on the relationship between copyright law and the freedom of expression and information. However, Szpunar rightly refers to two further pending referral proceedings of the German Federal Supreme Court in which similar questions on the relationship between copyright and fundamental rights dominate (Case Ref.: C-476/17 – Pelham (also known as “Metall auf Metall”); Case Ref.: C-516/17 – Spiegel Online). At least in these proceedings the CJEU will have to state its position on the questions from the BGH.

[View source.]